Making the Wolf a Shepherd

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The Triumph of Democracy

by Ryan McMaken by Ryan McMaken

The story of American political history over the last century has been a story of the ever-increasing power of the executive branch at the expense of Congress, of private citizens, and most importantly, the rule of law. The current diatribes against the allegedly outdated restraints imposed by the Constitution coming from this administration’s supporters are anything but novel. Such claims from the White House began long ago, even before Lincoln, but the difference today, of course, is that when the American public hears such things, they actually believe it. All the equivocating about the Constitution being a "living document" and not something for limiting the powers of government has become most fashionable, even among those claiming to be part of some kind of "conservative" movement.

To be sure, in 1952, in the days of the Korean War, Garet Garrett, a true defender of liberty, who was not impressed by the glib words of the Truman war machine, recalled the previous year’s propaganda piece put out by the State Department to defend Truman’s illegal war in Korea. The document, "Powers of the President to Send Troops Outside of the United States" naturally built upon the Roosevelt tradition of power-grabbing and declared that now, the president was no longer to be constrained by mere laws:

As this discussion of the respective powers of the President and Congress has made clear, constitutional doctrine has been largely moulded [sic] by practical necessities. Use of the congressional power to declare war, for example, has fallen into abeyance because wars are no longer declared in advance.

Concluding that such bold dismissal of Congressional power was akin to something "Caesar might have said" to the Roman Senate, Garrett asked the obvious question in response: "If constitutional doctrine is moulded by necessity, what is a written constitution for?"

Well, when you’ve entered into the age of mass democracy where the president is seen as the infallible voice of the people (consider all the convenient arguments of "mandates" emerging from every victorious administration for decades), and Congress is seen as little more than an inconvenient barrier to the president, the constitution must indeed become little more than a collection of general guidelines. Almost comical is the fact that the president takes an oath to uphold the constitution, but as Truman’s men made clear in 1951, the constitution is largely "moulded by necessity," and is thus more or less what the president has decided it is.

This of course extends to issues far beyond matters of declaring war, although matters of war and peace are most often what presidents will rely upon to justify their dismissals of the established laws. Not surprisingly, what presidents may deem to be necessary will more often than not be in direct conflict with the rights of the people. It is certainly no coincidence that these necessary assaults against the constitution have the effect of outlawing criticism of the government. Whether we are talking about Adams’ Alien and Sedition Acts, Lincoln’s suspension of habeas corpus, Wilson’s Sedition Act of 1918, or the many "anti-terrorism" efforts waged by recent administrations, justification for such expansions of government prerogatives require that one cast a jaded eye on the Constitution and the rule of law and instead fall in line with necessity and the mandate of the unchecked majority as manifested in the executive.

The enemies of such abuses, whether they be the judges in their courts or dissenters in Congress are denounced as enemies of the people and as opponents of "progress" or "security" in the face of enemies real or imagined. We see this all the time when the dissenters, in an interesting twist of rhetoric, are labeled as the arrogant elite, out of touch with "the people," and thus unfit to rule or even criticize. The rhetoric remains more or less the same no matter who is in power, but it is always the goal of those in power to define themselves as the only true stewards of the law, and thus possessing the mandate to change the law at will.

In his biographical sketch on James Fenimore Cooper in The Conservative Mind, Russell Kirk highlights Cooper’s views on this particular phenomenon in a democracy:

In democracies there is a besetting disposition to make publick [sic] opinions stronger than the law. This is the particular form in which tyranny exhibits itself in the popular government; for wherever there is power, there will be found a disposition to abuse it. Whoever opposes the interests or wishes of the publick, however right in principle, or justifiable by circumstances, finds little sympathy; for in a democracy, resisting the wishes of the many, is resisting the sovereign in his caprices…The most insinuating and dangerous form on which oppression can overshadow a community is that of popular sway.

In these comments we find the fundamental understanding of law common among defenders of liberty from early America. For Cooper, the danger in democracy lies in making the popular will stronger than the law. The law is of course not the public will, and most certainly not the government, but the body of established restrictions on governments and men. Modification of such law is to be approached with only the utmost care, and few are less fit for such a task than a democratic majority. The law is what stands between the state and men, between tyranny and liberty.

Yet a century before Truman’s lecturing of congress on its anachronistic war-time duties, Cooper was seeing the evils of claiming "necessity" as a catalyst for destroying the law’s protections against government:

There is no more certain symptom of the decay of the principal requisite to maintain even our imperfect standard of virtue, than when the plea of necessity is urged in vindication of any departure from its mandate, since it is calling in the aid of ingenuity to assist the passions, a coalition that rarely fails to lay prostrate the feeble defenses of a tottering morality. [my emphasis]

When we put this into Cooper’s larger context, we see that his central point is that once free men begin to allow governments to claim that the ends justify the means, they will not long be free men. The appeal to necessity against the rule of law then is hardly the sign of the courageous and robust society (as many in power today would like to imagine themselves), but instead the sign of feebleness in a society unwilling to defend its own rights from the ever-encroaching powers of the State where finally, a "tottering morality" gives way to the passions of the mob.

We see these feeble defenses on full display here in America every other year as Americans have long surrendered to the fantasy that "we are the government" and the public is thrown into a frenzy of hating one side and worshipping the other, with the focus always being on the presidency as if the public will were magically embodied within the minds of a single man and his underlings. And then the "disposition to make publick opinions stronger than the law" takes hold and the majority takes to endowing the current presidential recipient of their hero worship with every imaginable public trust. New laws are made, the minority is punished, the majority is given its largesse, and always, the public, no longer able to distinguish between itself and the government, abandons the laws that once constrained the power of the State for the sake of necessity.

Of course, law and constitutions were never sufficient to preserve liberty. As that great Virginian, John Randolph knew, "Mere parchment is no insurance against oppression." Freedom is only granted to those who demand it, but as long as men, enchanted by conventions and flag waving and appeals to nationalism, are willing to make a wolf the shepherd and hand over the business of liberty to governments, we will surely live in an age of vanishing liberties where every abuse of power is deemed sacrosanct and where the passions of the majority are the only law that matters.

Ryan McMaken [send him mail] is a former lobbyist, an occasional college instructor, and a regular columnist for LewRockwell.com.

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